After Achilles, Homer’s hero in The Iliad, slays his Trojan rival Hector, he does not immediately celebrate. Instead he grieves for the dead. Achilles leads a dirge for his fallen friend Patroclus, and along with his soldiers,

thrice round the corpse of Patroclus they drove
Their mane-tossing horses, the men ever mourning, as Thetis
Aroused in their hearts the desire to lament.1

The act of circling around the body of the dead is not unique to humans. In How Animals Grieve, Barbara King recounts the death of an elephant matriarch, Eleanor, in the Samburu National Reserve in Kenya. Drawing upon the pioneering research of Iain Douglas-Hamilton, who has tracked a population of nine hundred elephants in Samburu since 1997, King writes that for a “full week after Eleanor’s death, elephants came to the body in a parade of exploration and emotion.” They lingered, using their trunks to sniff, touch, and nudge the dead body. In a related scene, observed in Amboseli National Park, also in Kenya, “a small group of elephants encircles the bones on the ground. Some elephants begin to turn the bones over and pick them up in their trunks, feeling their nooks, crannies, and crevices.”2 Equally stunning, researchers have observed “near-burials” of the elephant dead. Elephants dig up dirt, break off tree branches and palm fronds, and cover the body with greenery.

Elephants provide the most memorable and gripping example of animal grief in King’s book. Each of her chapters chronicles a different kind of animal, including cats, dogs, farm animals, bunnies, monkeys, chimpanzees, birds, dolphins, whales, turtles, apes, and bison. To build her case for the emotional commonality between animals and humans, King employs anecdotes. We read stories of how, after losing their companions, dogs and bunnies refuse to eat; ducks and horses exhibit nervousness and social anxiety; dolphins strand themselves and commit suicide. In each case, like with human grief, death of a fellow animal sparks a radical shift in behavior.

King’s anecdotes raise a series of questions: How do we tell stories about animals? Why does it matter that animals grieve? And what sort of politics can we construct from the stories we tell about them?

King is a vivid storyteller. She makes scientific research dramatic and lively. Take, for instance, the title of a scientific article listed in King’s bibliography: “African Elephants Show High Level of Interest in the Skulls and Ivory of Their Own Species.” Such restraint! Compare that neutral description with King’s rendition: the elephants “seek out the bones of their deceased loved ones.” Whereas scientists describe the elephants as “placing their feet lightly against particular objects and manipulating them,” King’s elephants “stroke the jaw” and “caress” the bones that they come across.

Caress, stroke, seek out, deceased loved ones: these words do not appear in the studies that King summarizes. Arguably the disparity in language is merely a matter of genre and its constrictions. Behavioral scientists must use language that projects scientific objectivity; King, who also does an occasional segment on animals for NPR, writes for a general audience that yearns for the familiar structure of human drama. But the disparity also has real consequences. Scientific language, while dry, reflects intellectual humility; it recognizes the scientist’s uncertainty that he or she is correctly interpreting the signals amid noisy data. Thus, Douglas-Hamilton writes that “elephants and humans may share emotions, such as compassion, and have an awareness and interest about death.” His language is tentative, allowing for the possibility of alternative explanations. Compare his uncertainty with King’s pronouncement: “You’ll find animal grief in these pages, in bunnies and ducks and a host of other species. But you’ll also find animal love.”

King vacillates between two registers: the cautious tone of science and the sentimental tone of popular books. She promises the reader stories of animal grief and love, but she defines grief guardedly: “Grief can be said to occur when a survivor animal acts in ways that are visibly distressed or altered from the usual routine, in the aftermath of the death of a companion animal who had mattered emotionally to him or her.” King marshals this tepid definition of grief to preempt charges of anthropomorphism from her scientific colleagues. Then she offers another dodge: unlike humans, animals are not necessarily “conscious” of their grieving. Grieving, she argues, is a physical response; the animals’ behavioral changes do not necessarily demonstrate a cognitive awareness of loss.

Ultimately King leans—slightly, but cloyingly—toward the conclusion that we share similar emotional lives with animals.

For each clear and declarative statement, King is quick to add “all the cautions and qualifications” necessary to mollify any behavioralist critics. As an anthropologist, she writes, she has a “need to honor human uniqueness… Among animals, we alone fully anticipate the inevitability of death.” Some paragraphs later, however, she retreats into generalizations: that animals and humans are bonded by grief and loss, and we all share a “common biological underpinning.” Ultimately King leans—slightly, but cloyingly—toward the conclusion that we share similar emotional lives with animals: “We grieve as primates and we have company.”

King’s evasiveness makes How Animals Grieve an odd book: one feels her grasping her way across the page, uncertain about whom she is addressing. Such equivocation is understandable, for anthropomorphism is a serious intellectual charge: anthropomorphic writing not only runs the risk of infantilizing animals, it more fundamentally levels difference, failing to recognize the “otherness” of animals. At its core, anthropomorphism concerns the problem of the universality and particularity of human experiences. Do animals share similar consciousness to humans? Do they have emotional lives? If they do, how would we know? What methods can we employ to detect the internal lives of animals, and are those methods inescapably limited by the virtue of being devised by humans? It is a problem that philosophers and writers—from Aristotle to Descartes to Darwin to Tolstoy to Kafka to Derrida to Coetzee—have tackled.3

While King presents a panoramic view of species that grieve, she provides a shallow view of the varied forms of human grief. To create her picture of human mourning, King draws upon the personal memoirs of C. S. Lewis, Joyce Carol Oates, and Joan Didion, eschewing the “third-person scholarly tomes about people’s responses to death across time or among different cultures.” Among these writers, King particularly admires Lewis, who avoids a “public, wild lament” when he loses his wife. King prefers tales of quiet, personal, private acts of grieving. Death exacts physical tolls on the griever and disrupts the rhythms of daily life; the writers respond to this assault by meditating on how their lives have changed. King suggests that it is our capacity to reflect on our own grief that makes us human.

But perhaps King should consider what those “third-person scholarly tomes” teach us about the diverse social and political histories of death rituals throughout human time. “We humans,” King asserts, “don’t erupt into displays of aggression around dead bodies as chimpanzees may.” But this is not true. In The Iliad, once Achilles has finished mourning the death of Patroclus, he begins to defile Hector’s body. “Thus night after night,” Achilles spilled tears in bed, arose sleepless, and would “roam up and down, / Distraught, on the shore of the sea.” As light spread over billows and beach, Achilles would

[Y]oke to his car
His fast-running horses, and binding Hector behind,
He would drag him three times around dead Patroclus’s barrow.
Then he would sit in his lodge, while Hector lay stretched
On the ground outside, face down in the dust.

Achilles’s grief turns destructive. Nor is his aggression an aberration. Chinese death rituals, for example, have formalized aggressive behavior into prolonged periods of wailing, beating of the breast, and stamping of the feet.4 Public acts of mourning have often turned into violent protests throughout the world, and even peaceful demonstrations of collective grief—for instance, for Trayvon Martin or Oscar Grant—reflect moral fury at political and social injustice. King is so invested in claims that “animals grieve when they have loved” that she fails to recognize grief when it is a product of other emotions, such as anger or moral outrage.

Because King devotes all of her energy to the portrayal of grief as a personal emotion that is limited to the loss of a loved one, she doesn’t explore the larger political and social ramifications of the scientific findings that she surveys. Throughout the book, she gestures towards her politics by praising advances in animal conservation. She mentions in passing that she is a “near-vegetarian” and remarks that knowledge of “what occurs in chicken slaughterhouses haunts [her].” Some of her best, and most poignant, writing appears when her moral outrage bubbles just under the surface. Recounting the aftermath of two ducks’ rescue from a foie gras farm, she can barely contain her anger:

Foie gras, literally “fatty liver,” is a food product made by force-feeding ducks and geese, a practice that causes the animals to suffer. All three mulards showed signs of liver disease called hepatic lipidosis. The two in the worst shape were males called Harper and Kohl. Because of fractures that went untreated at the foie gras farm, Kohl’s legs were deformed. Harper was blind in one eye. Both ducks were terribly frightened of people. The single blessing in the whole situation was that they became close friends and chose to spend almost all their time together.

This could have been a choice moment for King to push a political argument, to force us to consider our responsibility to tortured animals. But she retreats, instead offering us a moving—but ultimately sentimental—story about how Harper and Kohl “lived [together] for four years at the sanctuary” and how Harper grieved after Kohl’s death.

King acknowledges that Harper’s grief is particular to him, and that duck grief is different from monkey grief, and that monkeys have a diversity of grief within their own species. But she pushes, ultimately, for the universality of animal grief, without which she cannot proceed to her next argument: that animal grief is like human grief.

King’s proclivity for a universalizing vision of grief leaves many tantalizing questions unasked.

Perhaps it is unfair to criticize King for not writing a political screed—hers is meant to be a heartwarming book that appeals to a diverse readership. But it is precisely her sentimentality that blunts possible political claims. King’s proclivity for a universalizing vision of grief leaves many tantalizing questions unasked. Suppose, for instance, that a particular animal is proven, scientifically, to have a less complex form of grief than humans, to be cognitively unaware of grief, or to have a form of grief that is unrecognizable or indiscoverable to humans. Would we then, under the authority of science, deem that animal less worthy of protection? The book’s politics are ultimately unambitious, and she avoids how the new scientific research in animal emotions might bear on issues of animal rights. If, as King concludes, animals share sentiments and reflections with humans, a political claim ought to flow naturally from a claim of our commonality. Instead of politics, however, readers will discover solace in animal relations, like the friendship of the ducks Harper and Kohl.

II | The Plaintiffs Are Five Orcas

What might an ambitious politics look like? The lawsuit brought by People for the Ethical Treatment of Animals (PETA) against SeaWorld suggests one direction. In 2011, PETA, along with three marine biologists and two former orca trainers, brought an unprecedented federal claim against the parks and entertainment company, demanding the release of five orca whales. “Plaintiffs are members of the Orcinus orca or ‘killer whale’ species, the largest of the dolphin family,” the complaint reads. “Orcas possess sophisticated learning, problem solving, and communicative abilities.”5 The five plaintiffs, Tilikum, Katina, Corky, Kasatka, and Ulises, were captured off the coasts of British Columbia and Iceland. (Tilkium and Katina are confined in SeaWorld Orlando; the rest, SeaWorld San Diego.)

The complaint details the effects of captivity: “Defendants force Plaintiffs to live in barren concrete tanks in unnatural physical and social conditions.” “The physical constraints of the artificial enclosures limit exercise and physically harm the orcas.” “Confining orcas in barren concrete tanks with acoustically reflective walls is equivalent to a human living captive in a room covered with mirrors on all walls and the floor. The experience is profoundly distressing, with the distress increasing with the length of confinement in these conditions.”

The lawsuit was the first to invoke the 13th Amendment, enacted in 1864 to abolish slavery, on behalf of non-persons. PETA charges that the orcas “are held in slavery and involuntary servitude.”

The PETA complaint also details the deleterious effects of being held captive at SeaWorld. “In nature, orcas are typically always in motion, even when resting. One of the fastest animals in the sea, orcas travel up to 100 miles each day and typically spend eighty- to ninety- percent of the time under the water’s surface: a near impossibility at SeaWorld Orlando, where only two of the seven tanks are as deep as Tilikum is long.” Orcas live in “large complex groups with highly differentiated relationships” and enjoy “dynamic social roles in intricate networks.” In the wild, orcas live long lives—males up to 60 years, females 90. In captivity, the mean lifespan of orcas is 8.5 years.

The lawsuit was the first to invoke the 13th Amendment, which was enacted in 1864 to abolish slavery, on behalf of non-persons. PETA charges that the orcas “are held in slavery and involuntary servitude”: they were captured in the wild; they are held in barren concrete cages; they are forced to breed; they are forced to perform for SeaWorld’s profit.

PETA’s work is part of a lineage of “13th Amendment optimism,” as the Columbia law professor Jamal Greene names it. This body of varied and creative litigation seeks to read the 13th Amendment as prohibiting, among other things: child labor, child abuse, trafficking, felony disenfranchisement, hate crime legislation, anti-abortion legislation, and private enforcement of discrimination in housing. Very few petitioners have successfully marshaled the 13th Amendment, and its use has been whittled down to the point where almost no one can invoke it. It is “nearly self-evident,” Greene writes, “that neither the current US Supreme Court nor any presently imaginable US Supreme Court is likely to accept” arguments that push for a broader reading of the 13th Amendment. More exciting to academic idealists than to practitioners, the 13th Amendment has been called “fool’s gold” by Greene.6

In spite of these dim odds, PETA marched forward. “Although enacted in the historical context of African slavery, the Supreme Court [sic] has repeatedly declared that the 13th Amendment is not so limited,” PETA alleges. “Our constitutional jurisprudence is the story of the courts interpreting, applying, and expanding constitutional protections to new groups and circumstances. A constitutional ‘principle, to be vital, must be capable of wider application than the mischief which it gave birth.’”

In response, SeaWorld called PETA’s claims “offensive,” “absurd,” and “so baseless that no party has ever wasted the time, energy and expense of any court in making such claims.”7 SeaWorld charged that PETA had blemished the “sanctity of the 13th Amendment,” and that the complaint “is not only frivolous and a waste of the Court’s valuable resources, it is offensive and an insult to the legacy of those people in this country who toiled under the lash of slavery.” To discredit PETA’s claims, SeaWorld drew upon a series of historical witnesses to bolster its case that “from time immemorial there has been a legal distinction between humans and animals.” Among them was Representative John Farnsworth, who, during the 1865 congressional debate over the passage of the 13th Amendment, rejected the idea that slaves could be property. God gave men dominion of animals, but not humans:

Property! What is property! That is property which the Almighty made property. When at creation He gave man dominion over things animate and inanimate, He established property. Nowhere do you read that He gave man dominion over another man.

A PETA victory, SeaWorld argued, would entail a complete revolution in our legal conception of property: “[D]efining ‘slavery’ to include orcas—or any animal for that matter—would turn property law on its head,” SeaWorld alleged. “Animals in all states, including California and Florida, are considered property.” Allowing PETA’s interpretation of the 13th Amendment “would nullify a millennia [sic] of common and civil law defining animals as property.” And in a final grab for moral authority, SeaWorld pointedly enlisted Ted Shaw, a former president of the NAACP Legal Defense Fund, to argue on its behalf at oral arguments before the district court.

SeaWorld’s mode of argument is quite familiar in the history of slavery in the United States: it pits the fragile concept of personhood against the mammoth, enduring juggernaut of property. As the scholar Stephen Best writes, “Slavery is not simply an antebellum institution that the United States has surpassed but a particular historical form of an ongoing crisis involving the subjection of personhood to property.”8 Best notes, in particular, the landmark Supreme Court case Dred Scott v. Sanford. There, the majority analyzed the intent of the drafters of the Constitution by examining the history of, among other things, the slave trade clause. They reasoned that while the drafters intentionally endowed citizens with rights of “individual power and ownership,” they expressly did not confer such rights on black people. The majority concluded that the Constitution intended to “treat them as property.” As Chief Justice Roger Taney explained, “No one of that race had ever migrated to the United States voluntarily; all of them had been brought here as articles of merchandise.” While Dred Scott is paraded today as offensive, nothing in Justice Taney’s reasoning is technically incorrect. Dred Scott “may have been morally reprehensible,” as the historian Eric Foner writes, but was “good constitutional law, at least if good constitutional law means continually re-enacting the principles and prejudices of the founding fathers.”

The lawyers for SeaWorld had the easier task: they took specific circumstances and then argued that no other situation is comparable, turning the compelling and traumatic history of the past case against the present one.

PETA—and the orcas—lost. In PETA’s case, too, the district court could be said to have written a technically sufficient ruling while dodging larger moral questions. The district court judge ruled that orcas are not persons, and that the 13th Amendment applies only to persons: “As slavery and involuntary servitude are uniquely human activities … there is simply no basis to construe the 13th Amendment as applying to non-humans.” Brief and plain, the opinion cites a number of 13th Amendment cases that applied to persons. The opinion notes that no cases have found otherwise. The opinion closes with a seemingly sincere nod to PETA, calling its efforts “laudable.”

The apparent reasonableness of the opinion signals law’s limits. Judges are often dutifully averse to departing from established law. A conservative machinery, the law relies on past decisions in order to ensure consistency. Prior cases—not an independent moral judgment of the present case—determine outcomes. Here lies the plight of the radical lawyer trying to construct a radical politics: she is constrained by legal precedent. And although law has established that corporations and nation-states are legal “persons,” animals have never been classified as such.9 In the particular context of the 13th Amendment, no previous case has interpreted slavery to include non-persons, and even the most forward-thinking of judges are wary to be the first. The lawyers for SeaWorld thus had the easier task: they took specific circumstances—the legitimately groundbreaking passage of the 13th Amendment—and then argued that no other situation is comparable, turning the compelling and traumatic history of the past case against the present one.

The radical lawyer is also constricted by the fact that in the law, analogy is the primary, and often solitary, mode of argument. To win, a lawyer must prove that the present case, X, is much like another decision, Y. This is why a legal opinion often alienates laypersons: its categories often appear forced, artificial, remote. The PETA lawyers, having no legal precedent besides the 13th Amendment cases that apply only to persons, are now forced to analogize this particular species of dolphin to a person.10 They must say: the dolphin has mental capacity, therefore the dolphin is like a person. Or: the dolphin is like a person because the dolphin has a capacity to feel and suffer. This leaves the lawyer open to the obvious refutation that a dolphin is not like a human. And so the debate continues, oscillating between binaries. Is a dolphin like a human, or is a dolphin not like a human? If the dolphin is enough like a human, rights should be extended; if it isn’t, then no rights for the smiling blubbery creature. PETA likely did not expect a legal victory. Its aims were aspirational: to provoke debate in the public realm and to introduce into the legal record scientific evidence of orca sentience—and in these they were successful.

III | The Ape Meditates in the Cage

It seems likely that orcas will not be accorded constitutional protection until science confirms, absolutely and unambivalently, that dolphins are indeed like persons. Yet scientists, out of fear of being called anthropomorphists, cannot confidently assert that a particular animal is like a human. Thus radical activists like PETA are in a bind, constrained by the conventions of two powerful genres, science and law. These are the political stakes of King’s ambiguous language.

It is, of course, frustrating to be beholden to the conventions of law and science. Must we prove that an animal is like a person in order to grant its worth? Must we rely on science for assurance that animals deserve better treatment? J. M. Coetzee offers fiction as an imaginative, empathetic alternative to the frames of science and law. Coetzee’s novel Elizabeth Costello fashions a character, a celebrated and aging writer now 66, who is newly contemplating the inhumane treatment of animals. She gives a series of lectures at a university. She is savage, impolitic, irascible. “I was hoping not to have to enunciate principles,” she says. “If principles are what you want to take away from this talk, I would have to respond, open your heart and listen to what your heart says.”

Photograph by Kevin McCoy

Above all, Costello says, the human task is to develop the faculty of sympathy, which “allows us to share at times the being of another.” Poetry is best suited for that task. Each animal, including humans, is endowed with a “fullness of being”—a bat in full flight, a human sprinting, the movement of a body in free space. Costello praises Ted Hughes’s poems about jaguars and salmon as models. “In these poems,” she says, “we know the jaguar not from the way he seems but the way he moves. The body is as the body moves, or as the currents of life move within it.” His poems, she explains, “[do] not try to find an idea in the animal,” but rather create an “electric” and visceral record of engagement with him. “There is no limit to the extent to which we can think ourselves into the being of another,” she continues. “There are no bounds to the sympathetic imagination.”11

In a particularly moving passage, Costello describes an ape’s confinement. In 1917, apes are hunted by traders in Africa and shipped to a scientific institute in Germany that studies the animals’ mental capacities. The institute is led by a scientist named Wolfgang Köhler, and Costello ventriloquizes for the best of Köhler’s “pupils,” an ape named Sultan. Locked in a cage, Sultan observes a man stretch a wire over the pen, hang a banana on it, and drag wooden crates onto the ground. This is the human notion of intelligence, Sultan determines, as he climbs over the crates to obtain the banana. “At every turn … he is relentlessly propelled towards lower, practical, instrumental reason,” Costello states, “and thus towards acceptance of himself as primarily an organism with an appetite that needs to be satisfied.”

Banana obtained, and data collected from him, Sultan awaits the next experiment. “The question that truly occupies him,” Costello says—bringing to mind that other Homeric hero, Odysseus—“as it occupies the rat and the cat and every other animal trapped in the hell of the laboratory or the zoo is: ‘Where is home, and how do I get there?’”

Homer, The Iliad, translated by Ennis Rees (Oxford University Press, 2006), Book 23, p. 388. All subsequent quotations from The Iliad are from this edition. ↩

The literature on the philosophy and history of animal consciousness is vast. For a fairly succinct overview, see John Jeremiah Sullivan’s essay “One of Us,” in Lapham’s Quarterly, vol. 6, no. 2 (Spring 2013). Recent studies in animal consciousness have also inspired an “animal turn” in the humanities. See Kari Weil, Thinking Animals: Why Animal Studies Now (Columbia University Press, 2012). ↩

For more on Chinese death rituals, see James L. Watson and Evelyn S. Rawski, Death Ritual in Late Imperial and Modern China (University of California Press, 1988). ↩

See the Complaint for Declaratory and Injunctive Relief, Tilikum, Katina, Corky, Kasatka, and Ulises, five orcas v. SeaWorld Parks & Entertainment, Inc. and SeaWorld, LLC, 842 F. Supp. 2d 1259 (S.D. Cal. 2012). Charmingly, the complaint states that “Plaintiffs cannot bring this action to seek relief for themselves due to inaccessibility and incapacity.” A PDF of the complaint can be found on the PETA website here. ↩

For more on analogies and animal rights, see Richard Posner, “Animal Rights: Legal, Philosophical, and Pragmatic Perspectives,” in Animal Rights: Current Debates and New Directions, edited by Cass Sunstein and Martha Nussbaum (Oxford University Press, 2004), pp. 51–77. ↩